Bill 55 - Credit Reporting Services Act

BILL 55

Credit Reporting Services Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

PRELIMINARY MATTERS

Definitions

1 The following definitions apply in this Act.

“Commission” means the Financial and Consumer Services Commission continued under the Financial and Consumer Services Commission Act. (Commission)

“common law partner” means a person who cohabits in a conjugal relationship with another person if the persons are not married to each other. (conjoint de fait)

“compliance officer” means a person appointed as a compliance officer under section 32. (agent de conformité)

“consumer” means a natural person acting for personal, family or household purposes and does not include a person who is acting for business purposes. (consommateur)

“Court of Queen’s Bench” means The Court of Queen’s Bench of New Brunswick. (Cour du Banc de la Reine)

“credit information” means information about a consumer as to name, age, occupation, place or places of residence, previous places of residence, marital status, spouse’s or common law partner’s name and age, number of dependants, particulars of education or professional qualifications, employers, previous employers, estimated income, paying habits, outstanding debt obligations, cost of living obligations, assets, and fines imposed on and restitution orders made against him or her. (renseignements sur la solvabilité)

“credit repair” means services or goods that are intended to improve a credit report, credit information or file, including a credit record, credit history or credit rating. (redressement de crédit)

“credit repairer” means (redresseur de crédit)

(a) a supplier of credit repair, or

(b) a person who holds himself, herself or itself out as a supplier of credit repair.

“credit report” means any release of information pertaining to a consumer by a credit reporting agency, whether in written or oral or other form. (rapport de solvabilité)

“credit reporting agency” means a person who, for gain or profit, provides credit reports or creates and maintains files from which credit reports are directly generated and provided. (agence d’évaluation du crédit)

“Director” means the Director of Consumer Affairs appointed under the Financial and Consumer Services Commission Act and includes any person designated by the Commission or the Director to act on the Director’s behalf. (directeur)

“end-user” means any person who receives or uses a credit report from a credit reporting agency, excluding a consumer to whom the credit report pertains. (utilisateur final)

“file” means all information pertaining to a consumer that is recorded and retained by a credit reporting agency, regardless of the manner, form or location in which the information is stored. (dossier)

“investigator” means a person appointed as an investigator under section 37. (enquêteur)

“licence” means a licence issued under this Act that is not suspended or cancelled. (permis)

“Minister” means the Minister of Finance and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“regulated activity” means any activity governed by this Act or the regulations. (activité réglementée)

“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule. (règlement)

“rule” means a rule made under section 56, or if the context requires, a rule made under the Financial and Consumer Services Commission Act. (règle)

“Tribunal” means the Financial and Consumer Services Tribunal established under the Financial and Consumer Services Commission Act. (Tribunal)

Non-application of Act

2( 1) This Act or any provision of it does not apply

(a) to any person or class of persons prescribed by regulation, or

(b) to any person or class of persons exempted from the application of the Act or provision by an order of the Director made under subsection 3(1).

2( 2) A person exempted under paragraph (1)(a) from the application of this Act or any provision of it shall comply with any terms or conditions prescribed by regulation.

Exemptions

3( 1) If the Director considers it appropriate to do so, the Director may, by order and subject to any terms and conditions the Director considers appropriate, exempt any person or class of persons from the application of this Act or any provision of it or from the application of the regulations or any provision of them.

3( 2) An order under subsection (1) may be made on the Director’s own motion or on the application of an interested person.

3( 3) The order may be retroactive in its operation.

3( 4) A person to whom the order applies shall comply with the terms and conditions imposed by the Director under subsection (1).

PART 2

LICENSING

Licence

4( 1) No person shall carry on business as a credit reporting agency unless the person has been licensed as provided by this Act and the regulations.

4( 2) An applicant for a licence shall

(a) apply to the Director on a form provided by the Director,

(b) provide proof satisfactory to the Director that the applicant is authorized to carry on business in the Province,

( i) an address for service in the Province, and

( ii) any other information prescribed by regulation,

(d) submit to the Director any fee prescribed by regulation, and

(e) comply with any other requirements prescribed by regulation.

4( 3) The Director may require an applicant to verify, by affidavit or otherwise, the authenticity, accuracy or completeness of any information or material submitted to the Director under this section.

Issuance of licence and imposition of terms and conditions

5( 1) The Director may

(a) issue a licence to an applicant if the Director is satisfied that the applicant is suitable to be licensed and the proposed licence is not for any reason objectionable,

(b) at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence, and

(c) refuse to issue a licence to an applicant if the Director is of the opinion, after due investigation made by the Director or by a person the Director designates, that the applicant should not be issued a licence.

5( 2) The holder of a licence shall comply with the terms and conditions imposed on the licence by the Director.

5( 3) The Director shall not refuse to issue a licence or impose terms and conditions on the licence without giving the applicant or holder of the licence an opportunity to be heard.

Suspension or cancellation of licence

6( 1) The Director may suspend or cancel a licence when the Director considers it in the public interest to do so.

6( 2) The Director shall not suspend or cancel a licence without providing the holder of the licence an opportunity to be heard.

7( 1) The Director shall maintain a register of licence holders that contains the following information for each licence:

(a) the name and contact information of the licence holder;

(b) whether terms and conditions apply to the licence;

(d) any other information prescribed by regulation.

7( 2) The register shall be accessible to the public at the offices of the Commission during normal business hours.

Change in circumstances

8( 1) No licence holder shall fail to notify the Director in writing immediately of any change to a phone number, an address for service, a facsimile number or an electronic address previously submitted to the Director.

8( 2) Within seven days after a change in circumstances prescribed by regulation, an applicant for a licence or a licence holder shall notify the Director in writing.

PART 3

INFORMATION IN FILES AND CREDIT REPORTS OF CREDIT REPORTING AGENCIES

Information in the files of a credit reporting agency

9( 1) No credit reporting agency and no officer or employee of a credit reporting agency shall knowingly provide any information from the files of the credit reporting agency to a person except

(a) in response to a warrant or order of a court having jurisdiction to issue the warrant or order,

(b) in response to an order or direction made under this Act,

( i) to an end-user who has obtained, in accordance with section 11, the consent of the consumer to obtain the credit report,

( ii) to a third party by an end-user who has obtained, in accordance with section 11, the consent of the consumer to the release of the credit report to the third party, or

( iii) to an end-user in accordance with subsection 18(5), or

(d) in accordance with section 17 or 18 to the consumer to whom the information pertains.

9( 2) No person shall knowingly obtain any information from a consumer’s file held by a credit reporting agency except in the circumstances referred to in subsection (1).

9( 3) Despite subsections (1) and (2), a credit reporting agency may provide identifying information respecting any consumer, limited to his or her name, places of residence, former places of residence, employers and former employers to the Government of Canada or of a province or territory of Canada, to any agency of such a government, to the government of any municipality or other local authority in Canada, to any agency of such a municipality or other local authority or to any police officer or other peace officer acting in the course of his or her duties.

9( 4) A credit reporting agency shall maintain in a consumer’s file all the information of which the consumer is entitled to disclosure under subsection 17(1).

9( 5) No holder or former holder of a licence shall sell, lease or transfer title to its files or any of them except to the holder a licence.

Contents of credit reports

10( 1) A credit reporting agency shall adopt all procedures reasonable for ensuring accuracy and fairness in the contents of its credit reports.

10( 2) A credit reporting agency shall not maintain in its files nor include in a credit report

(a) information about a consumer’s health or a consumer’s medical history, including information about a physical or mental disability, and

(b) information about a consumer’s gender identity or expression, sex, sexual orientation, political belief or activity, creed or religion, race, colour, ancestry or national origin.

10( 3) A credit reporting agency shall not include in a credit report

(a) information regarding any debt of a consumer, in either of the following circumstances, unless the creditor or the creditor’s agent confirms that the debt is not statute-barred and the confirmation appears in the consumer’s file:

( i) more than six years have elapsed since the date of the last payment on the debt;

( ii) in a case where no payment has been made, more than six years have elapsed since the date on which the default in payment occurred;

(b) information as to the payment or non-payment by a consumer of taxes or lawfully imposed fines or monetary penalties, more than six years after the date they were imposed by a government or a government agency;

( i) the charge has been dismissed, set aside or withdrawn, or

( ii) an absolute discharge or conditional discharge is granted;

(d) subject to paragraph (e), information as to a consumer’s conviction for a crime, more than six years after the date of conviction or, if the conviction resulted in imprisonment, more than six years after the date of release or parole;

(e) information as to a consumer’s conviction for a crime, if a pardon was granted or a record suspension was ordered and the pardon or record suspension remains in effect;

(f) information as to a monetary judgment against a consumer unless mention is made of the name and, if available, the address of the judgment creditor or the judgment creditor’s agent as given at the date of entry of the judgment, and the amount;

(g) information as to a monetary judgment against a consumer, more than six years after the judgment was given, unless paragraph (e) is complied with and the judgment creditor or the judgment creditor’s agent confirms that it remains unpaid in whole or in part, and the confirmation appears in the consumer’s file;

(h) information about the bankruptcy of a consumer who has been bankrupt only once if

( i) the bankruptcy has been discharged, and

( ii) more than six years have elapsed since the discharge of the bankruptcy;

(i) information about the first bankruptcy of a consumer if

( i) the consumer has been bankrupt only twice,

( ii) both bankruptcies have been discharged, and

( iii) more than six years have elapsed since the discharge of the first bankruptcy;

(j) information about the second bankruptcy of a consumer if

( i) the consumer has been bankrupt only twice,

( ii) both bankruptcies have been discharged, and

( iii) more than 12 years have elapsed since the discharge of the second bankruptcy;

(k) information regarding any other legal proceedings involving a consumer unless the current status of the proceeding has been ascertained and is included in the credit report; and

(l) any other adverse item of information pertaining to a consumer if more than six years have elapsed since the information was acquired or last reaffirmed.

10( 4) A credit reporting agency shall not include any information in a credit report unless

(a) the source of the information is included in the credit report,

(b) the source’s contact information is included in the credit report or can be readily ascertained by the consumer to whom the credit report pertains, and

10( 5) For the purposes of subsection (4), “contact information” means the mailing address and telephone number.

Consent

11( 1) An end-user obtaining consent to the release to the end-user of a credit report pertaining to a consumer shall inform the consumer as to

(a) the purpose for obtaining the credit report and how it will be used,

(b) if the consent permits the release of the credit report to a third party by the end-user, the purpose of the release;

(d) whether

( i) the consent expires on a specified date, or

( ii) the consent continues during the term of an agreement.

11( 2) The consent to the release of a credit report is void if an end-user obtains the consent by

(a) providing false or misleading information respecting the consent, or

(b) using deceptive or misleading practices.

11( 3) A consumer may give his or her consent to the release of a credit report in writing, including by electronic means, or orally.

11( 4) An end-user obtaining a consumer’s consent for the release of a credit report pertaining to the consumer shall take reasonable steps to verify the identity of the consumer and record the steps taken.

11( 5) If a consumer is asked by an end-user to give consent in writing to the release of a credit report pertaining to the consumer, the end-user shall ensure that the text of the consent form is

(a) clear and easily understood, and

(b) contains the information described in subsection (1).

11( 6) Within a reasonable time after a consent form has been signed by the consumer, the end-user shall provide a copy of the signed consent form to the consumer.

11( 7) If a consumer is asked by an end-user to give consent by electronic means to the release of a credit report pertaining to the consumer, the end-user shall ensure that

(a) the information described in subsection (1) is provided to the consumer in a clear and easily understood manner before he or she consents to the release of the credit report, and

(b) the consent and information related to it as set out in section (1) is capable of being retained or printed by the consumer.

11( 8) If a consumer is asked by an end-user to give consent orally to the release of a credit report pertaining to the consumer, the end-user shall ensure that the information described in subsection (1) is provided to the consumer in a clear and easily understood manner before the consumer consents to the release of the credit report.

11( 9) The end-user obtaining an oral consent shall, in a form that can be reproduced, record

(a) that the information described in subsection (1) was provided to the consumer and by whom, and

(b) the name of the individual representing the end-user who received the consent and the date and time when the consent was given by the consumer.

11( 10) The end-user obtaining an oral consent shall, within a reasonable time after the consumer has given the consent, provide the information recorded under subsection (9) to the consumer in a form capable of being retained or printed by the consumer.

11( 11) A consumer may, by giving reasonable notice, withdraw his or her consent to the release of a credit report at any time, subject to any legal or contractual restrictions.

11( 12) An end-user who receives the withdrawal of consent shall inform the consumer of the implications of the withdrawal.

Publication of policies

12 A credit reporting agency shall make all information regarding its disclosure period policies accessible to the public and ensure that the information is presented in a manner that is complete, accurate and easily understood by a reasonable consumer.

PART 4

CONSUMER RIGHTS

Division A

Credit Reporting

Communication with credit reporting agencies

13 A credit reporting agency shall maintain a toll-free telephone number that provides service to all regions in Canada in which the credit reporting agency conducts business.

Waiver of rights prohibited

14 No credit reporting agency shall request or require a consumer to waive any rights provided under this Act or the regulations or to release the credit reporting agency from any obligation imposed under this Act or the regulations and any such purported waiver or release is void.

Adverse action

15( 1) An end-user who relies on a credit report from a credit reporting agency shall give notice to the consumer to whom the credit report pertains when the contents of the credit report play a role in

(a) the denial of a benefit, product or service,

(b) increasing the cost of a benefit, product or service, or

15( 2) The end-user shall give the notice referred to in subsection (1)

(a) within 15 days after taking the action, and

(b) in person or by mail to the last known address of the consumer.

15( 3) Within a reasonable time after receiving a request from the consumer, the end-user shall inform the consumer of the name and address of the credit reporting agency that provided the credit report.

15( 4) A request referred to in subsection (3) shall be made in writing by the consumer within 60 days after receiving the notice referred to in subsection (1).

15( 5) The end-user shall ensure that the notice referred to in subsection (1) contains notice of the consumer’s right to request the information referred to in subsection (3) and the time limited for that.

Clarity of information

16( 1) Any information provided to a consumer from a credit reporting agency must be easily understood by a reasonable consumer.

16( 2) If a system of codes or notation or technical terminology is used in providing the information, the credit reporting agency shall provide a plain-language explanation of how the codes, notation or technical terminology is to be understood.

Right of consumer to disclosure

17( 1) A credit reporting agency shall, within a reasonable time after the making of a written request by a consumer, disclose

(a) the nature and substance of all information pertaining to the consumer at the time of the request that is held by the credit reporting agency,

(b) the sources of credit information pertaining to the consumer,

(c) the names of end-users to whom the credit reporting agency has provided a credit report pertaining to the consumer within the one-year period preceding the request,

(d) all written credit reports pertaining to the consumer provided by the credit reporting agency to end-users within the one-year period preceding the request, and

(e) particulars of all oral credit reports pertaining to the consumer provided by the credit reporting agency to end-users within the one-year period preceding the request.

17( 2) Before making disclosures under subsection (1), a credit reporting agency shall take reasonable steps to verify that the person requesting the disclosure is the consumer and shall record the steps taken.

17( 3) Subject to subsection (9), information disclosed under subsection (1) shall be provided by the credit reporting agency in writing or in any other form prescribed by regulation.

17( 4) A credit reporting agency responding to a request under subsection (1) shall inform the consumer in writing of his or her right to protest under sections 18 and 29 any information contained in the file and the manner in which a protest may be made.

17( 5) A consumer is entitled on a request under subsection (1) to receive the information referred to in that subsection from the credit reporting agency free of charge once per calendar year.

17( 6) If a consumer requests the information referred to in subsection (1) more than once during the calendar year, the credit reporting agency may charge a fee not greater than the fee prescribed by regulation for each additional disclosure of information requested.

17( 7) If a consumer receives a notice under subsection 15(1) in relation to a credit report and the consumer makes a request to the relevant credit reporting agency, the consumer is entitled to receive free of charge a copy of the credit report.

17( 8) Subject to subsection (9), a copy of a credit report referred to in subsection (7) shall be provided by the credit reporting agency in writing or in any other form prescribed by regulation within a reasonable time after the making of the request by the consumer.

17( 9) If a consumer making a request under subsection (1) or (7) has a disability, the credit reporting agency shall take all reasonable measures to provide the information or the copy of the credit report, as the case may be, in a format that accommodates the disability.

Correction of errors

18( 1) If a consumer disputes the accuracy or completeness of any item of information contained in his or her file, the credit reporting agency within a reasonable time shall use its best endeavours to confirm or complete the information and shall correct, supplement or delete the information in accordance with good practice.

18( 2) If a credit reporting agency corrects, supplements or deletes information under subsection (1),

(a) the credit reporting agency shall within a reasonable time give notice, in writing, to the consumer of the correction, supplement or deletion and of the consumer’s right to make a request under subsection (5), and

(b) the consumer is entitled, by making a request, to receive, free of charge, from the credit reporting agency a copy of the information contained in his or her file that reflects the correction, supplement or deletion.

18( 3) Subject to subsection (4), a copy of information referred to in paragraph (2)(b) shall be provided by the credit reporting agency in writing or in any other form prescribed by regulation within a reasonable time after the making of the request by the consumer.

18( 4) If a consumer making a request under paragraph (2)(b) has a disability, the credit reporting agency shall take all reasonable measures to provide the copy of the information in a format that accommodates the disability.

18( 5) If a credit reporting agency corrects, supplements or deletes information under subsection (1), the credit reporting agency shall, within a reasonable time after the making of a request by the consumer, provide a credit report reflecting the correction, supplement or deletion to the end-users specifically designated by the consumer from among those who have been provided by the credit reporting agency with a credit report based on the unamended file within the six-month period preceding the correction, supplement or deletion.

18( 6) Credit reports provided under subsection (5) shall be provided by the credit reporting agency in writing or in any other form prescribed by regulation.

Consumer’s statement of dispute

19( 1) A consumer may provide to a credit reporting agency a statement declaring that a dispute exists with respect to the accuracy or completeness of an item contained in his or her file and, subject to subsections (2) to (7), the credit reporting agency is required to include the statement in all subsequent credit reports that include the item to which the statement relates.

19( 2) A credit reporting agency may, after giving notice to a consumer, limit the consumer’s statement of dispute to 700 characters.

19( 3) A credit reporting agency may refuse to include in credit reports a consumer’s statement that it has reasonable grounds to believe is libelous.

19( 4) A credit reporting agency that receives a consumer’s statement that it does not intend to include in credit reports because it has reasonable grounds to believe the statement is libelous shall

(a) inform the consumer, in writing, that the statement will not be included in credit reports and the reason why, and that a revised statement may be submitted,

(b) provide reasonable advice, in writing, to the consumer on how to submit a statement that is not libellous, as well as a reasonable opportunity to make a revised statement, and

(c) inform the consumer, in writing, that a standard unqualified indication that a dispute exists may be used instead of a statement by the consumer.

19( 5) A credit reporting agency may determine the content of a standard unqualified indication that a dispute exists, if it is clear and readily understood by a reasonable end-user.

19( 6) When no acceptable revised statement is agreed to, the consumer may request that a standard unqualified indication that a dispute exists be included by the credit reporting agency in all credit reports that include the item to which the indication pertains.

19( 7) A credit reporting agency shall comply with a request under subsection (6) within a reasonable time after receiving the request.

Security alerts

20( 1) The following definition applies in this section.

“security alert” means a statement included in a consumer’s file at his or her request, and transmitted as part of any credit report provided about the consumer, that gives notice to end-users to verify the identity of any person purporting to be the consumer. (note d’alerte de sécurité)

20( 2) A consumer may request a credit reporting agency to include a security alert in his or her file.

20( 3) A credit reporting agency shall provide a telephone number that a consumer can call, at any time and without being charged for the call, to request that a security alert be included in the consumer’s file, that it be removed or that the information provided under subsection (4) be amended.

20( 4) When making a request under subsection (2), the consumer shall provide the credit reporting agency with a telephone number at which he or she may be contacted for the purposes of verifying his or her identity and with any other information prescribed by regulation.

20( 5) Within a reasonable time after receiving a request made in accordance with subsection (4), the credit reporting agency shall include the security alert in the consumer’s file.

20( 6) A telephone number provided by a consumer under subsection (4) or paragraph (7)(b), as the case may be, shall be included in the security alert by the credit reporting agency.

20( 7) A consumer may request that a credit reporting agency

(a) remove a security alert from the consumer’s file, or

(b) amend the information provided under subsection (4).

20( 8) A credit reporting agency shall comply with a request under subsection (7) within a reasonable time after receiving it.

20( 9) Before complying with a consumer’s request under subsection (2) or (7), a credit reporting agency shall take reasonable steps to verify that the person making the request is the consumer and record the steps taken.

20( 10) Before complying with the consumer’s request under subsection (2), a credit reporting agency shall inform the consumer of the date, if any, that the security alert will expire.

20( 11) No person shall charge, require or accept a fee in relation to a security alert except in accordance with the regulations.

20( 12) If a consumer’s file includes a security alert, the credit reporting agency shall give this alert to every end-user to whom the credit reporting agency provides a credit report pertaining to the consumer.

20( 13) An end-user who receives a credit report that includes a security alert shall not proceed with a transaction without first taking reasonable steps to verify that the person involved in the transaction is the consumer and shall record the steps taken.

Division B

Credit Repair

Requirements for agreements for credit repair

21 Every agreement for credit repair between a consumer and a credit repairer shall be made in writing and in accordance with the requirements prescribed by regulation and a written copy of the agreement shall be delivered to the consumer by the credit repairer.

Advance payments prohibited

22( 1) No credit repairer shall require or accept any payment or any security for a payment, directly or indirectly, from or on behalf of a consumer until the credit repairer causes a material improvement to the credit report, credit information, file, credit record, credit history or credit rating of the consumer.

22( 2) An arrangement by which a credit repairer takes security in contravention of subsection (1) is void.

Cancellation: cooling-off period

23( 1) A consumer who is a party to an agreement for credit repair may, without any reason and without charge, cancel the agreement at any time from the date of entering into the agreement until 10 days after receiving a written copy of the agreement.

23( 2) In addition to the right under subsection (1), a consumer who is a party to an agreement for credit repair may, without charge, cancel the agreement within one year after the date of entering into it if the consumer does not receive a written copy of the agreement.

23( 3) The cancellation of an agreement for credit repair in accordance with this section operates to cancel the agreement as though it never existed.

Notice of cancellation and obligations on cancellation

24( 1) An agreement for credit repair is cancelled under section 23 when the consumer gives a notice of cancellation in accordance with this section.

24( 2) A consumer may give a notice of cancellation to a credit repairer by

(a) delivering it personally to the credit repairer, or

(b) sending it to the credit repairer by registered mail, prepaid courier, telephone transmission producing a facsimile or any other method that permits the consumer to provide evidence of the cancellation.

24( 3) A notice of cancellation that is given in accordance with paragraph (2)(b) shall be deemed to be given when it is sent.

24( 4) Subject to subsections (2) and (3), a notice of cancellation is adequate if it indicates the intention of the consumer to cancel the agreement for credit repair.

24( 5) If an agreement for credit repair is cancelled under section 23, within 15 days after the notice of cancellation has been delivered or sent, the credit repairer shall refund the money received under the agreement to the consumer.

Officers and directors

25 The officers and directors of a credit repairer are jointly and severally liable for any remedy in respect of which a person is entitled to commence a proceeding against the credit repairer.

Prohibited representations

26 A credit repairer shall not communicate or cause to be communicated any representation that is prescribed by regulation as a prohibited representation.

Division C

General

Complaints

27( 1) The Director may receive and handle complaints respecting credit reporting agencies or credit repairers.

27( 2) If he or she considers it appropriate, the Director may refuse to handle or to continue to handle a complaint.

Information respecting complaint

28( 1) If the Director receives a written complaint in respect of a credit reporting agency or a credit repairer, the Director may give a direction, in writing, requiring the credit reporting agency or credit repairer to furnish the Director with any information respecting the complaint that the Director requires.

28( 2) A direction under subsection (1) shall indicate the nature of the complaint involved.

Order by Director

29( 1) The Director may order a credit reporting agency to amend or delete any information, or by order restrict or prohibit the use of any information, that in the Director’s opinion is inaccurate or incomplete or that does not comply with the provisions of this Act or the regulations.

29( 2) The Director may order a credit reporting agency to notify any person who has received a credit report of any amendments, deletions, restrictions or prohibitions imposed by the Director.

29( 3) An order under this section may be made on the application of the consumer to whom the information pertains or on the Director’s own motion.

PART 5

RECORD-KEEPING, ADVERTISING AND COMPLIANCE REVIEWS

Record-keeping

30( 1) The following definition applies in this section.

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of a credit reporting agency or credit repairer. (organisme de réglementation)

30( 2) A credit reporting agency or credit repairer shall keep books, records and documents that are necessary for the proper recording of its business and affairs and shall keep any other books, records and documents that are otherwise required under this Act or the regulations.

30( 3) A credit reporting agency or credit repairer shall keep the books, records and documents at a safe location and in a durable form.

30( 4) A credit reporting agency or credit repairer shall retain the books, records and documents for a minimum period of seven years after the date of the transaction to which the books, records or documents relate.

30( 5) A credit reporting agency or credit repairer shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires

(a) any of the books, records and documents that are required to be kept by the credit reporting agency or credit repairer under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

False or misleading advertisement

31( 1) No credit reporting agency or credit repairer shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.

31( 2) If, in the opinion of the Director, a credit reporting agency or credit repairer has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the credit reporting agency or credit repairer to stop using that material immediately.

Compliance review

32( 1) The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

32( 2) The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

32( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of any credit reporting agency or credit repairer during normal business hours,

(b) require a credit reporting agency or credit repairer or an officer or employee of either of them to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the credit reporting agency or credit repairer,

(c) inspect, examine, audit or copy the books, records or documents relating to the business or affairs of a credit reporting agency or credit repairer, and

(d) question a credit reporting agency or credit repairer or an officer or employee of either of them in relation to the business or affairs of the credit reporting agency or credit repairer.

32( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or documents are kept,

(b) reproduce any book, record or document, and

(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.

32( 5) A compliance officer may carry out a compliance review within or outside the Province.

32( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

32( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

32( 8) The Commission may, in circumstances prescribed by regulation, require a credit reporting agency or credit repairer in respect of which a compliance review was carried out to pay the Commission any fee prescribed by regulation and to reimburse the Commission for any expenses prescribed by regulation.

Removal of documents

33( 1) A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents without delay after the making of copies or extracts.

33( 2) A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

34 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

35( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Part, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

35( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

PART 6

INVESTIGATIONS

Provision of information to Director

36( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

36( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Director may require any of the following persons to provide information or to produce books, records or documents or classes of books, records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) the holder of a licence issued under this Act;

(b) a former holder of a licence issued under this Act;

(d) a credit repairer; or

(e) any person that does not hold a licence under this Act and that is, or the Director has reason to suspect is, carrying out a regulated activity.

36( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

36( 4) The Director may require that the information provided or that the books, records or documents or classes of books, records or documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, records or documents or classes of books, records or documents are already available in that form.

Investigation order

37( 1) The Commission may, by order, appoint a person as an investigator to make any investigation that the Commission considers expedient

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

37( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

38( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the business or affairs of that person,

(b) any books, records, documents or communications connected with that person, and

(c) any property or assets owned, acquired or disposed of, in whole or in part, by that person or by a person acting on behalf of or as agent for that person.

38( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.

38( 3) An investigator making an investigation under this Part may, on production of the order appointing him or her,

(a) enter the business premises of any person named in the order during normal business hours and inspect and examine any book, record, document or thing that is used in the business of that person and that relates to the order,

(b) require the production of any book, record, document or thing referred to in paragraph (a) for inspection or examination, and

(c) on giving a receipt, remove the book, record, document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.

38( 4) Inspection or examination under this section shall be completed without delay and the books, records, documents or things shall be returned promptly to the person who produced them.

38( 5) No person shall withhold, destroy, conceal, alter or refuse to give any information or withhold, destroy, conceal, alter or refuse to produce any book, record, document or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

39( 1) An investigator making an investigation under this Part has the same power to summon and enforce the attendance of witnesses, to compel witnesses to give evidence under oath or in any other manner and to compel witnesses to produce books, records, documents and things or classes of books, records, documents and things as the Court of Queen’s Bench has for the trial of civil actions.

39( 2) On the application of an investigator to the Court of Queen’s Bench, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court of Queen’s Bench.

39( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

39( 4) Testimony given by a person under this section shall not be admitted into evidence against that person in any prosecution other than for perjury in the giving of that testimony or the giving of evidence contradictory to that testimony.

Investigators authorized as peace officers

40 Every investigator in carrying out his or her duties under this Act and the regulations is a person employed for the preservation and maintenance of the public peace and has and may exercise all the powers, authorities and immunities of a peace officer as defined in the Criminal Code (Canada).

Seized property

41( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, records, documents or things seized under this Part, the books, records, documents or things seized shall, at a time and place mutually convenient to the person who was in lawful possession of them at the time of the seizure and the investigator, be made available for consultation and copying by the person.

41( 2) If books, records, documents or things are seized under this Part and the matter for which the books, records, documents or things were seized is concluded, the investigator shall return those books, records, documents or things to the person who was in lawful possession of them at the time of the seizure within 60 days after the day that the matter is concluded.

41( 3) If books, records, documents or things are seized under this Part and the person who was in lawful possession of the books, records, documents or things at the time of the seizure alleges that the books, records, documents or things are not relevant in respect of the matter for which they were seized, that person may apply by notice of motion to the Court of Queen’s Bench for the return of the books, records, documents or things.

41( 4) On a motion under subsection (3), the Court of Queen’s Bench shall order the return of any books, records, documents or things that it determines are not relevant to the matter for which they were seized to the person who was in lawful possession of the books, records, documents or things at the time of the seizure.

Report of investigation

42( 1) If an investigation has been made under this Part, the investigator shall, at the request of the Commission, provide a report of the investigation to the Commission or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.

42( 2) A report that is provided to the Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.

Prohibition against disclosure

43( 1) For the purpose of protecting the integrity of an investigation under this Part, the Commission may make an order that applies for the duration of the investigation, prohibiting a person from disclosing to any person other than the person’s lawyer the following information:

(a) the fact that an investigation is being conducted;

(b) the name of any person examined or sought to be examined;

(d) the nature or content of any demands for the production of any document or other thing; or

(e) the fact that any document or other thing was produced.

43( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

43( 3) An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

44 None of the following persons is compellable to give evidence in any court or in any proceeding of a judicial nature concerning any information that comes to the knowledge of the person in the exercise of the powers or performance of the duties of that person in relation to an investigation under this Part:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

PART 7

ENFORCEMENT

Offences generally

45( 1) A person who does any of the following commits an offence, and is liable on conviction, for each offence, if an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both, and if a person other than an individual, to a fine of not more than $250,000:

(a) makes a statement in any information or material submitted, provided, produced, delivered or given to or filed with the Commission, the Director, a compliance officer, an investigator or any person acting under the authority of the Commission or the Director that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;

(b) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under this Act or the regulations that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;

(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;

(e) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Commission, the Director or the Tribunal made or given under this Act or the regulations;

(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations;

(g) violates or fails to comply with any provision of the regulations; or

(h) provides false or misleading information or uses deceptive practices to obtain the consent of a consumer to the release of a credit report pertaining to the consumer.

45( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

(a) the person did not know and in the exercise of reasonable diligence could not have known that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading in light of the circumstances in which it was made, and

(b) on becoming aware that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading, the person notified the Commission.

Misleading or untrue statements

46 In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading.

Orders in the public interest

47( 1) On the application of the Commission, the Tribunal, if in its opinion it is in the public interest to do so, may make one or more of the following orders:

(a) an order that a licence be suspended or restricted for the period specified in the order or be cancelled, or that terms and conditions be imposed on the licence;

(b) an order that any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations have not been complied with, an order that any document or statement described in the order

( i) be provided by a person,

( ii) not be provided to a person, or

( iii) be amended to the extent that amendment is practicable;

(f) an order that a person be reprimanded;

(g) an order that a person amend, in the manner specified in the order, any information or material of any kind described in the order that is disseminated to the public;

(h) an order that a person cease violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

47( 2) The Tribunal may impose any terms and conditions that the Tribunal considers appropriate on an order under this section.

47( 3) A person who is the subject of an order made under this section shall comply with any terms and conditions imposed on the order.

47( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

47( 5) Despite subsection (4), if in the opinion of the Tribunal the length of time required to hold a hearing could be prejudicial to the public interest, the Tribunal, without a hearing, may make a temporary order under paragraph (1)(a), (b), (c) or (f).

47( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

47( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

47( 8) The Commission shall without delay give written notice of an order or temporary order made under this section to any person directly affected by the order or temporary order.

Administrative penalty

48( 1) On the application of the Commission and after conducting a hearing, the Tribunal may order a person to pay an administrative penalty of, in the case of an individual, not more than $25,000, and in the case of a person other than an individual, not more than $100,000, if the Tribunal

(a) determines that the person has violated or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

48( 2) The Tribunal may make an order under this section despite the imposition of any other penalty on the person or the making of any other order by the Tribunal, the Commission or the Director related to the same matter.

Directors and officers

49 If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 47.

Resolution of administrative proceedings

50( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Director under this Act or the regulations may be disposed of by

(a) an agreement approved by the Commission, the Tribunal or the Director, as the case may be,

(b) a written undertaking made by a person to the Commission, the Tribunal or the Director that has been accepted by the Commission, the Tribunal or the Director, as the case may be, or

(c) a decision of the Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

50( 2) An agreement, written undertaking or decision made, accepted or approved under subsection (1) may be enforced in the same manner as a decision made by the Commission, the Tribunal or the Director under any other provision of this Act or under the regulations.

Limitation period

51 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

PART 8

GENERAL

Appeal

52( 1) A person who is directly affected by a decision of the Director made under this Act may appeal it to the Tribunal within 30 days after the date of the decision.

52( 2) The Tribunal may by order confirm, vary or rescind the whole or any part of a decision under appeal or substitute its own decision for that of the Director.

52( 3) Despite the fact that an appeal is held under this section, a decision under appeal takes effect immediately, but the Tribunal may grant a stay of the decision until disposition of the appeal.

Certificate evidence

53 A certificate purporting to be signed by the Director or a person designated by the Commission certifying all or any of the following facts is admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the appointment, authority or signature of the person who signed the certificate:

(a) that a person named in the certificate was or was not licensed;

(b) that a licence was issued to a person on a date set out in the certificate;

(d) that a licence issued to a person was made subject to terms and conditions.

Conflict with the Right to Information and Protection of Privacy Act

54 If a provision of this Act is inconsistent or in conflict with a provision of the Right to Information and Protection of Privacy Act, the provision of this Act prevails.

Administration

55 The Commission is responsible for the administration of this Act.

Regulations and rules

56( 1) The Lieutenant-Governor may make regulations and the Commission may make rules

(a) exempting any person or class of persons from the application of this Act or the regulations or any provision of them;

(b) prescribing terms and conditions attached to an exemption referred to in paragraph (a);

(d) prescribing requirements for the purposes of paragraph 4(2)(e);

(e) prescribing information to be contained in a register of licence holders for the purposes of paragraph 7(1)(d);

(f) prescribing changes in circumstances for the purposes of subsection 8(2);

(g) for the purposes of subsection 17(3), prescribing the form in which information shall be provided;

(h) prescribing a maximum fee for the purposes of subsection 17(6), including specifying circumstances in which a fee may not be charged;

(i) for the purposes of subsection 17(8) or 18(3), prescribing the form in which a copy of a credit report or of information shall be provided;

(j) for the purposes of subsection 18(6), prescribing the form in which credit reports shall be provided;

(k) for the purpose of subsection 20(4), prescribing information to be provided by a consumer;

(l) for the purpose of subsection 20(11), specifying circumstances in which fees may be charged in relation to a security alert and prescribing the maximum fees;

(m) subject to paragraphs (h) and (l), governing the fees or maximum fees a credit reporting agency may require to be paid for the provision of a service, including providing for circumstances in which fees may not be charged;

(n) for the purposes of section 21, prescribing requirements for making an agreement;

(o) prescribing prohibited representations for the purposes of section 26;

(p) requiring, for the purposes of subsection 30(2), that certain books, records or documents be kept;

(q) authorizing disclosures for the purposes of subsection 43(2);

(r) defining any word or expression used in this Act but not defined in this Act, for the purposes of this Act, the regulations or both;

(s) respecting any other matter that may be necessary for the proper administration of this Act.

56( 2) The Lieutenant-Governor in Council may make regulations

(a) prescribing circumstances, fees and expenses for the purposes of subsection 32(8);

(b) prescribing the fees payable for the purposes of this Act or the regulations.

56( 3) The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.

56( 4) Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.

56( 5) A regulation made under subsection (4) is not effective before the rule referred to in that subsection comes into force.

56( 6) Subject to subsection (5), a regulation made under subsection (4) may be retroactive in its operation.

56( 7) A regulation or rule authorized by this section may incorporate by reference, in whole or in part, any laws, any by-laws or other regulatory instruments or any codes, standards, procedures or guidelines as they are amended from time to time before or after the making of the regulation or the rule or as they read at a fixed time and may require compliance with any law, any by-law or other regulatory instrument or any code, standard, procedure or guideline so incorporated.

56( 8) Regulations or rules may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.

56( 9) A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.

56( 10) The Regulations Act does not apply to the rules made under this Act.

56( 11) If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.

Notice and publication of rules

57( 1) As soon as the circumstances permit after a rule is made under section 56, the Commission shall

(a) publish the rule electronically, and

(b) publish in The Royal Gazette notice of the rule in accordance with the regulations made under the Financial and Consumer Services Commission Act.

57( 2) Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.

57( 3) When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).

Changes by Secretary of the Commission

58 The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 57(1)(a).

Consolidated rules

59( 1) The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.

59( 2) In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.

59( 3) The Commission may publish the consolidated rules in the frequency that it considers appropriate.

59( 4) A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.

59( 5) In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.

PART 9

TRANSITIONAL PROVISION, CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Transitional provision

60 Division B of Part 4 does not apply in relation to agreements for credit repair in force on the commencement of this section until the agreement is amended, renewed or extended.

Financial and Consumer Services Commission Act

61( 1) Section 1 of the Financial and Consumer Services Commission Act, chapter 30 of the Acts of New Brunswick, 2013, is amended in the definition “financial and consumer services legislation” by adding the following before paragraph (h):

(g.1) the Credit Reporting Services Act,

61( 2) Subsection 21(6) of the Act is amended by adding after paragraph (b) the following:

(b.1) paragraph 47(1)(i) of the Credit Reporting Services Act;

Commencement

62 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

SCHEDULE A

Number of provision

2(2)
3(4)
4(1)
5(2)
8(1)
8(2)
9(1)
9(2)
9(4)
9(5)
10(1)
10(2)
10(3)(a)
10(3)(b)
10(3)(c)
10(3)(d)
10(3)(e)
10(3)(f)
10(3)(g)
10(3)(h)
10(3)(i)
10(3)(j)
10(3)(k)
10(3)(l)
10(4)
11(4)
11(5)
11(6)
11(7)
11(8)
11(9)
11(10)
11(12)
12
13
14
15(1)
15(2)
15(3)
15(5)
16(1)
16(2)
17(1)
17(2)
17(3)
17(4)
17(8)
17(9)
18(1)
18(2)(a)
18(3)
18(4)
18(5)
18(6)
19(1)
19(4)
19(7)
20(3)
20(5)
20(6)
20(8)
20(9)
20(10)
20(11)
20(12)
20(13)
21
22(1)
24(5)
26
30(2)
30(3)
30(4)
30(5)(a)
30(5)(b)
31(1)
34
35(1)
38(5)
46
47(3)